Is the Fourth Amendment Precatory?

US Attorney General nominee Michael Mukasey has written a very lawyerly letter to the Senate Judiciary committee. The letter fails to use the word “waterboarding” although the acceptance of a cast-iron prohibition on “torture and cruel, inhuman and degrading treatment” might fairly be seen to cover banning it. The letter might be enough to peel off a few votes on the torture issue.

If you read the letter with any care, however, you will see that it very carefully refuses to say that — even in the face of the FISA legislation occupying the field — the the law can place any limits on a President who decides to wiretap US citizens, in the US, without a warrant, so long as he decides he wants to and is willing to wave the bloody shirt of national security.

This is a strikingly odd position to take in this letter, as the case against those wiretaps is based on both constitutional text and a statute, elements which sufficed to get Mukasey to unbend enough to say that both torture and not-quite-torture are illegal.

If the Senate confirms him after this, they're complicit in undermining the Constitution. Again.

The letter may, however, represent a fine-grained political judgment that there's no way for the administration to win on torture (and this is the most graceful way to lose) but that there's political capital to be had by being seen to be 'tough' on 'terror' — and that almost no one really cares about the Fourth Amendment anyway.

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